Skip to main content

Full text of "Equality before the law : unconstitutionality of separate colored schools in Massachusetts : argument of Charles Sumner, Esq., before the Supreme Court of Massachusetts, in the case of Sarah C. Roberts vs. the city of Boston, December 4, 1849"

See other formats


Equality before the Law ; Unconstitutionality of separate 
Colored Schools in Massachusetts, 



ARGUMENT 



OF 





in 




Hi. 




.sq. 



BEFORE 



THE SUPREME COURT OF MASSACHUSETTS, 



IN TIIE 



CASE OF SARAH C. ROBERTS ys. THE CITY OF BOSTON, 



DECEMBER 4, 1849. 



WASHINGTON: 

F. & J. RIVES & GEO. A. BAILEY, 

REPORTERS AND PRINTERS OF TIIE DEBATES OF CONGRESS. 

1870. 



Equality before the Law. 



This argument, though addressed to the Supreme 
Court of Massachusetts, is mainly national and uni- 
versal in topics, so that it is applicable wherever, 
especially in our country, any discrimination in edu- 
cational opportunities is founded on race or color. 
It is a vindication of Equal Rights in Common 
Schools. The term " Equality before the Law" was 
here for the first time introduced into our discus- 
sions. It is not found in the common law, nor until 
recently in the English language. It is a translation 
from the French, whence Mr. Sumxer took it. 

The Supreme Court heard the argument and, in 
their opinion, complimented the advocate; but they 
did not take the responsibility of annulling the 
unjust discrimination. After stating the claim of 
Equality before the Law, Chief Justice Shaw reduced 
it to very small proportions when he said that it meant 
'only that the rights of all as they are settled and 
regulated by law are equally entitled to the pater- 
nal consideration and protection of the law for their 
maintenance and security.' (a) This made it mean 
nothing; but such was the decision. The victrix 
causa was not less odious to Mr. Sumner, who never 
ceased to regret the opportunity lost by the court of 
contributing an immortal precedent to the recogni- 
tion and safeguard of human rights. 

The error of the court was repaired by the Legis- 
lature of Massachusetts, which, in 1855. (a) enacted 
as follows : 

" In determining the qualifications of scholars to 
lie admitted into any Public School or any District 
School in this Commonwealth, no person shall be 
excluded from a Public School on accountof race, 
color., or religious opinions of the applicant or 
scholar." 

By other sections the child thus excluded was en- 
titled to " damages therefor in an action of tort," 
and by a bill of discovery to obtain evidence. Then 
came this supplementary protection : 

'"Every person belonging to the School Committee 
under whose rules or directions any child shall bo 
excluded from such school, and every teacher of any 
such school, shall, on application by the parent or 
guardian of any such child, state in writing the 
grounds and reasons of such exclusion." 

Since this legislation Equal Rights have prevailed 
inthe Common Schools of Massachusetts, and nobody 
would go bnck to the earlier system. 

Associated with Mr. Stjmxf.r in this ease was 
Robert Morris, esq., a colored lawyer. 

it please your Honors : 
Can any discrimination on account of race 
or color be made among children entitled to 
the benefit of our Common Schools under the 
Constitution and Laws of Massachusetts ? This 
is the question which the Court is now to hear, 
to consider, and to decide. 

(a) Robert* vs. ( 'ity < >' Boston, 5 Gushing, 206. 
(a) , lusetts, 1855, cap. 253 ; G 

Siatr' o) Mat acl setts, cap. 41, sec. 9. 



Or, stating the question with more detailand 
with more particular application to the facts 
of the present case, are the Committee having 
superintendence of the Common Schools of 
Boston intrusted with power, under the Con- 
stitution and Laws of Massachusetts, to exclude 
colofed children from the schools and compel 
them to find education at separate schools set 
apart for colored children only, at distances 
from their homes less convenient than schools 
open to white children ? 

This important question arises in an action 
by a colored child only five years old who, by 
her next friend, sues the city of Boston for 
damages on account of a refusal to receive 
her into one of the Common Schools. 

It would be difficult to imagine any case 
appealing more strongly to your best judgment, 
whether you regard the parties or the subject. 
On the one side is the city of Boston, strong in 
wealth, influence, character ; on the other side 
is a little child, of degraded color, of humble 
parents, and still within the period of natural 
infancy, but strong from her very weakness 
and from the irrepressible sympathies of good, 
men, which, by a divine compensation, come 
to succor the weak. This little child asks at your 
hands her personal rights. So doing, she calls 
upon you to decide a question which concerns 
the personal rights of other colored children ; 
which concerns the Constitution and Laws of 
the Commonwealth ; which concerns that pecu- 
liar institution of New England, the Common 
Schools : which concerns the fundamental prin- 
ciples of human rights ; which concerns the 
Christian character of this community. Such 
parties and such interests justly challenge your 
earnest attention. 

Though this discussion is now brought for 
the first time before a judicial tribunal it is no 
stranger to the public. In the School Com- 
mittee of Boston for five years it has been the 
occasion of discord. No less than four differ- 
ent reports, two majority and two minority, 
forming pamphlets of solid dimensions devoted 
to this question, have been made to this Com- 
mittee and afterwards published. The opinions 
of learned counsel have been enlisted. The 
i controversy, leaving thc.=e regular channels, 



overflowed the newspaper press, and numerous 
articles appeared espousing opposite sides. At 
last it has reached this tribunal. It is in your 
power to make it subside forever. 

THE QUESTION STATED. 

Forgetting many of the topics and all of the 
heats heretofore mingling with the controversy, 
I shall strive to present the question in its 
juridical light, as becomes the habits of this 
tribunal. It is a question of jurisprudence on 
which you are to give judgment. But I cannot 
forget that the principles of morals and of 
natural justice lie at the foundation of all juris- 
prudence. Nor can any reference to these be 
inappropriate in a discussion before this Court. 

Of equality I shall speak, not only as a senti- 
ment, but as a principle embodied in the Con- 
stitution of Massachusetts and obligatory upon 
court and citizen. It will be my duty to show 
that this principle, after finding its way into 
our State Constitution, was recognized both 
in legislation and judicial decisions. Consider- 
ing next the circumstances of this case, it will be 
easy to show how completely they violate Con- 
stitution, legislation, and judicial decisions, 
first, by subjecting colored children to incon- 
venience, inconsistent with the requirements 
of Equality, and, secondly, by establishing a 
system of Caste odious as that of the Hindoos, 
leading to the conclusion that the School Com- 
mittee have no such power as they have exer- 
cised, and that it is the duty of the Court to set 
aside their unjust by-law. In the course of 
this discussion I shall exhibit the true idea of 
our Common Schools and the fallacy of the 
pretension that any exclusion or discrimination 
founded on race or color can be consistent 
with Equal Rights. 

In opening this argument, I begin naturally 
with the fundamental proposition, which, 
when once established, renders the conclusion 
irresistible. According to the Constitution of 
Massachusetts all men without distinction of 
race or color are equal before the law. In the 
statement of this proposition I use language 
which, though new ia our country, has the 
advantage of precision. 

EQUALITY BEFORE THE LAV,' ITS MEANING. 

I might perhaps leave this proposition with- 
out one word of comment. The Equality of 
men will not be directly denied on this occa- 
sion, and yet it is so often assailed of late that 
I shall not seem to occupy your time super- 
fluously, I trust, while endeavoring to show 
what is understood by this term when used in 
laws, constitutions, or other political instru- 
ments. Mr. Calhoun, in the Senate of the 
United States, and Lord Brougham, in his 
recent work on Political Philosophy, part II, 
cap. 4, characterize Equality as impossible I 
and absurd. Had they chosen to comprehend ! 
the extent and application of the term thus 
employed, something if not all of their objec- 
tion would have disappeared. That we may 
better appreciate its meaning and limitation, 



I am induced to exhibit the origin and growth 
of the sentiment, which, finally ripening into 
a formula of civil and political right was em- 
bodied in the Constitution of Massachusetts. 

Equality as a sentiment was early cherished 
by generous souls. It showed itself in dreams 
of ancient philosophy, and was declared by 
Seneca, when in a letter of consolation on 
death, he said, " Prima enim pars Equitatis 
est Equalitas.'" (Epist. 30.) The first partof 
Equity is Equality. But not till the truths of 
the Christian Religion was it enunciated with 
persuasive force. Here we learn that God is 
no respecter of persons ; that he is the Father 
of all ; and that we are all his children and 
brethren to each other. When the Saviour 
taught the Lord's Prayer he taught the sublime 
doctrine of Human Brotherhood enfolding the 
Equality of men. 

Slowly did this sentiment enter the State. 
The whole constitution of government was in- 
consistent with it. An hereditary monarchy, 
an order of nobility, and the complex ranks 
of superior and inferior established by the 
feudal system all declare, not the Equality but 
the inequality of men, and allconspire to per- 
petuate this inequality. Every infant of royal 
blood, every noble, every vassal is a present 
example, that whatever may be the injunctions 
of religion or the sentiment of the heart men 
under these institutions are not born equal. 

The boldest political reformers of early times 
did not venture to proclaim this truth, nor did 
they truly perceive it. Cromwell beheaded his 
king, but secured the supreme power in hered- 
itary succession to his eldest son. It was left 
to his loftier contemporary, John Milton, in 
poetic vision, to be entranced 

"With fair Equality, fraternal state." 

Sidney, who perished a martyr to the liberal 
cause, drew his inspiration from classic and 
not from Christian fountains. The examples 
of Greece and Rome fed his soul. The English 
Revolution of 1688, partly by force and partly 
by the popular voice, changed the succession to 
the Crown, and, if we may credit loyal English- 
men, secured the establishment of Freedom 
throughout the land. But the Bill of Rights 
did not declare, nor did the genius of Somers 
or Maynard conceive the political axiom, that 
all men are born equal. It may find accept- 
ance from individuals in our day, but it is dis- 
owned by English institutions. 

I would not forget the early testimony of the 
judicious Hooker, who in his Ecclesiastical 
Polity, that masterly work, dwells on the 
equality of men by nature, or the subsequent 
testimony of Locke, in his Essay on Govern- 
ment, who, quoting Hooker, asserts for him- 
self that " creatures of the same species and 
rank, promiscuously born to all the same 
advantages of nature and the use of the same 
faculties, should be equal one among another 
without subordination or subjection." Hooker 
and Locke saw the equality of men in a state 



of nature ; but it is difficult to find in them a 
practical guide. 

It is to France that we must pass for the 
earliest development of this idea, its amplest 
illustration, and its most complete, accurate, 
and logical expression. In the middle of the 
last century appeared the renowned Encyclo- 
pedic, edited by D'Alembert and Diderot. 
This remarkable production, where science, 
religion, and government are discussed with 
revolutionary freedom, contains an article on 
Equality, first published in 1755. Here we find 
the boldest expression of this sentiment down 
to that time. ''Natural Equality," says this 
authority, ,c is that which exists between all 
men by the constitution of their nature only. 
This Equality is the principle and the founda- 
tion of liberty. Natural or moral equality is 
then founded upon the constitution of human 
nature common to all men who are born, grow, 
subsist, and die in the same manner. Since 
human nature finds itself the same in all men, 
it is clear, that according to nature's law, each 
ought to esteem and treat the others as beings 
who are naturally equal to himself; that is to 
say, who are men as well as himself.'' It is 
then remarked that political and civil slavery 
is in violation of this Equality ; and yet the 
inequalities of nobility in the State are allowed 
to pass without condemnation. Alluding to 
these, it is simply said that they who are 
elevated above others ought to treat inferiors 
as naturally their equals, shunning all outrage 
and demanding nothing beyond what is due, 
but demanding with humanity what is incon- 
testably due. 

Considering the period at which this article 
was written we shall be astonished less by its 
vagueness and incompleteness than by its 
bravery and generosity. The dissolute des- 
potism of Louis XV poisoned France. The 
antechambers of the King were thronged by 
selfish nobles and fawning courtiers. The coun- 
cils of Government were controlled by royal 
mistresses. The King only a few years before, 
in defiance of Equality but in entire harmony 
with the conduct of the School Committee in 
Boston founded a military school, for nobles 
only, carrying into education the distinction of 
Caste. At such a period the Encyclopedia did 
well in uttering important and effective truth. 
The sentiment of Equality was fully declared. 
Nor should we be disappointed, that, at this 
early day, even the boldest philosophers did 
not adequately perceive, or if they perceived, 
did not dare to utter, our axiom of liberty. 

Thus it is with all moral and political ideas. 
First appearing as a sentiment, they awake a 
noble impulse, filling the soul with generous 
sympathy, and encouraging to congenial effort. 
Slowly recognized, they finally pass into a for- 
mula to be acted upon, to be applied, to be 
defended in the concerns of life. 

Almost contemporaneously with this article 
in the Encyclopedia our attention is arrested 
by a poor solitary of humble extraction, born 



at Geneva, in Switzerland, of irregular educa- 
tion and life, a wanderer from his birth-place, 
enjoying a temporary home in France Jean 
Jacques Rousseau. Of audacious genius, 
setting at naught received opinions, his ear- 
liest appearance was by an eccentric Essay 
on the Origin of Inequality among Men, where 
he sustained the irrational paradox that men 
are happier in a state of nature than under the 
laws of civilization. This was followed by a 
later work on the Social Contract. In both the 
sentiment of Equality is invoked against abuses 
of society, and language is employed tending far 
beyond Equality in Civil and Political Rights. 
The conspicuous position since awarded to the 
speculations of Rousseau and their influence 
in diffusing this sentiment would make this 
sketch imperfect without allusion to him ; but 
he taught men to feel rather than to know, 
and his words have more of inspiration than 
of precision. 

The French Revolution was at hand. That 
great outbreak for enfranchisement was the 
expression of this sentiment. Here it re- 
ceived distinct and authoritative enunciation. 
In the constitutions of government success- 
ively adopted, amid the throes of bloody strug- 
gle, the Equality of men was constantly pro- 
claimed. Kings, nobles, and all distinctions 
of birth passed away before this mighty and 
trimpuhant truth. 

These Constitutions show the grandeur of 
the principle and how it was explained and 
illustrated. The Constitution of 1791 in its 
first article declares that : "Men are born and 
continue free and equal in their rights. ' ' This 
great declaration was explained in the sixth 
article: "The law is the expression of the 
general will. It ought to be the same for all, 
whether it protects or punishes. All citizens 
being equal in its eyes, are equally admissible 
to all dignities, places, and public employments 
according to their capacity, and without other 
distinction than their virtues and talents. ' ' At 
the close of the Declaration of Rights there is 
this further explanation: " The National As- 
sembly, wishing to establish the French Consti- 
tution on principles which it has just acknowl- 
edged and declared, abolishes irrevocably the 
institutions which bounded liberty and equal- 
ity of rights. There is no longer nobility, or 
peerage, or feudal rule, or patrimonial justices, 
or any titles, denominations and prerogatives 
thence derived, or any order of chivalry, or any 
corporations or decorations for which proofs 
of nobility are required, or which supposed 
distinctions of birth, or any other superiority 
than that of public functionaries in the dis- 
charge of their functions." 
' ' There is no longer, for any part of the nation, 
or for any individual, any privilege or excep- 
tion to the law common to all Frenchmen.'''' 
[Moniteur, 1791, No. 259.] These diffuse 
articles all begin and end in the Equality of 
men. 

In fitful mood another Declaration of Rights 



6 



was brought forward by Condorcet February 
15, 1793. Here also are fresh inculcations of 
Equality. Article first places Equality among 
the natural, civil, and political rights of man. 
Article seventh declares: "Equality consists 
in this, that each can enjoy the same rights. 11 
Article eighth: " The law ought to be equal 
for all, whether it recompense, or punish, or 
repress." Article ninth: "All citizens are 
admissible to all public places, employments, 
and functions. Free people cannot know other 
motives of preference than talents and virtues." 
Article twenty-third : ' ' Instruction is the need 
of all, and society owes it equally to all its 
members." Article thirty-second : " Thereis 
oppression when the law violates the natural, 
civil, and political rights which it ought to guar- 
anty. There is oppression when a law is vio- 
lated by public functionaries in its application 
to individual facts." \_Moniteur, 1793, No. 49.] 
Here again is the same constant testimony, 
reenforced by the accompanying report explain- 
ing the Constitution, where it is said: "All 
political power by inheritance is at the same 
time an evident violation of natural equality 
and an absurd institution, since it supposes the 
inheritance of qualities proper for the discharge 
of a public function. Every exception from the 
common law made in favor of an individual is 
a blow struck at the right of all."* And in 
another part of the same report, the sovereignty 
of the people, equality among men, the unity 
of the Republic "are declared the guiding 
principles always present in the formation of 
the Constitution. f 

Next came the Constitution of June, 1793, 
announcing in its second article that the natural 
and imprescriptible rights of men are "Equal- 
ity, liberty, safety, property." In the next 
article we learn precisely what is meant by 
Equality when it says, "All men are equal by 
nature and before the law.'" (Moniteur, 1793, 
No. 178.) So just and captivating was this 
definition, which we encounter here for the 
first time, that it held its place through all the 
political vicissitudes of France, under the Di- 
rectory, the Consulate, the Empire, the Restor- 
ation, and the Constitutional Government of 
Louis Philippe. It was a conquest, which, when 
achieved, was never abandoned. Every charter 
and constitution certified to it. The charter of 
Louis Philippe testifies as follows : ' 'All French- 
men are equal before the law, whatever may be 
their titles or ranks." Nor was its use confined 
to France. It passed into other constitutions, 
and Napoleon, who so often trampled on the 
rights of Equality, dictated to the Poles the 
declaration that all persons are equal before 
the law. Thus the phrase is not only French 
but continental, although never English. 

While recognizing this peculiar form of 
speech as more specific and satisfactory than 
the statement that all men are born equal, it 



*Oondorcet, (Eewes : Tome XII., 336. Exposition dca 
Principcs ct dea Mostifs du Plan de Constitution. 
tlbid., 413. 



is impossible not to be reminded that it finds 
a prototype in the ancient Greek language 
where, according to Herodotus, "the govern- 
ment of the many has the most beautiful name 
of wovojxia," or Equality before the law. (Book 
3, 80.) Thus, in an age when Equality be- 
fore the law was practically unknown, this 
remarkable language, by its comprehensive- 
ness and flexibility, supplied a single word, not 
found in modern tongues, to express an idea 
practically recognized only in modern times. 
Such a word in our own language, as the sub- 
stitute for Equality, might have superseded 
criticism to which this declaration is exposed. 

EQUALITY UNDER THE CONSTITUTION OF MASSACHU- 
SETTS. 

The way is now prepared to consider the 
nature of Equality, as secured by the Consti- 
tution of Massachusetts. The Declaration of 
Independence, which followed the French En- 
cyclopedia, and the political writings of Rous- 
seau, announces among self-evident truths, 
" That all men are created equal, and that they 
are endowed by the Creator with certain un- 
alienable rights; that among these are life, 
liberty, and the pursuit of happiness." The 
Constitution of Massachusetts repeats the same 
truth in a different form, saying, in its first 
article : "All men are born free and equal, and 
have certain natural, essential, and unalienable 
rights, among which may be reckoned the right 
of enjoying and defending their lives and liber- 
ties." Another article explains what is meant 
by Equality, saying, " No man, nor corpora- 
tion, or association of men, have any other 
title to obtain advantages, or particular and 
exclusive privileges, distinct from those of the 
community, than ichat arises from the consid- 
eration of services rendered to the public; and 
this title being in nature neither hereditary nor 
transmissible to children, or descendants or 
relations by blood, the idea of a man being 
born a magistrate, lawgiver, or judge, is ab- 
surd and unnatural." This language, in its 
natural signification, condemns every form of 
inequality in civil and political institutions. 

These declarations, though in point ot time 
before the ampler declarations of France, may 
be construed in the light of the latter. Evi- 
dently they seek to declare the same principle. 
They are declarations of Bights, and the lan- 
guage employed, though general in character, 
is obviously limited to those matters within the 
design of a declaration of Eights. And per- 
mit me to say, it is a childish sophism to 
adduce any physical or mental inequality in 
argument against Equality of Rights. 

Obviously men are not born equal in physical 
strength, or in mental capacity ; in beauty of 
form or health of body. Diversity or inequal- 
ity, in these respects, is the law of creation. 
From this difference springs divine harmony. 
But this inequality is in no particular incon- 
sistent with complete civil and political equality. 

The equality declared by our fathers in 1776, 
and made the fundamental law of Massachu- 



setts in 1780, was Equality before the law. Its 
object was to efface all political or civil distinc- 
tions, and to abolish all institutions founded 
upon birth. "All men are created equal," 
says the Declaration of Independence "All 
men are born free and equal," says the Massa- 
chusetts Bill of Rights. These are not vain 
words. Within the sphere of their influence no 
person can be created, no person can be bom 
with civil or political privileges not enjoyed 
equally by all his fellow-citizens; nor can any 
institution be established recognizing any dis- 
tinction of birth. Here is the Great Charter 
of every human being drawing the vital breath 
upon this soil, whatever may be his condition 
and whoever may be his parents. He may be 
poor, weak, humble, or black; he may be of 
Caucasian, Jewish, Indian, or Ethiopian race ; 
hemay beof French, German, English, or Irish 
extraction, but before the Constitution of Mas- 
sachusetts all these distinctions disappear. He 
is not poor, weak, humble, or black nor is he 
Caucasian, Jew, Indian, or Ethiopian nor is 
he French, German, English, or Irish; he is a 
Man, the equal of all his fellow men. He is 
one of the children of the State, which, like an 
impartial parent, regards all its offspring with 
an equal care. To some it may justly allot 
higher duties, according to higher capacities, 
but it welcomes all to its equal, hospitable 
board. The State, imitating the divine justice, 
is no respecter of persons. 

Here nobility cannot exist, because it is a 
privilege from birth. But the same anathema 
which smites and banishes nobility must also 
smite and banish every form of discrimination 
founded on birth ; 
"Quaruvis ille niger, quamvis tu canclidus esses." 

EQUALITY BY LEGISLATION OF MASSACHUSETTS. 

The Legislature of Massachusetts, in entire 
harmony with the Constitution, has made no 
discrimination of race or color in the establish- 
ment of Common Schools. 

Any such discrimination by the Laws would 
be unconstitutional and void. But the Legis- 
lature has been too just and generous, too 
mindful of the Bill of Rights, to establish any 
such privilege of birth. The language of the 
statutes is general, and applies equally to all 
children, of whatever race or color. 

The provisions of the law are entitled, Of 
the Public Schools, (Revised Statutes, ch. 23.) 
meaning our Common Schools. To these we 
must look to ascertain what constitutes a Pub- 
lic School. Only those established in conform- 
ity with the Law can be legally such. Thpymay, 
in fact, be more or less public ; yet, if they do 
not come within the terms of the Law, they do 
not form a part of the beautiful system of our 
Public Schools; they are not Public Schools, 
or, as I prefer to call them, Common Schools. 
The two terms are used as identical ; but the 
latter is that by which they were earliest known, 
while it is most suggestive of their comprehen- 
sive character. A "common" in law is defined 



to be " open ground equally used by many 
persons," and the same word when used as an 
adjective is defined by lexicographers as " be- 
longing equally to many or to the public," thus 
implying Equality. 

If we examine the text of this statute, we 
shall find nothing to sustain the rule of exclu- 
sion which has been set up. The first section 
provides that in " Every town containing fifty 
families, or households, there shall be kept in 
each year, at the charge of the town, by a 
teacher or teachers of competent ability and 
good morals, one school for the instruction of 
children in Orthography, Reading, Writing, 
English Grammar,Geography,' Arithmetic, and 
Good Behavior, for the term of six months, 
or two or more such schools for terms of time 
that shall together be equivalent to six months. ' ' 
The second, third, and fourth sections provide 
for the number of such schools in other towns 
having more than five hundred inhabitants. 
There is no language recognizing any discrim- 
ination of race or color. Thus in every town 
the schools, whether one or more, are " for 
the instruction of children " generally; not 
children of any particular class, or race, or 
color, but children meaning the children of 
the town where the schools are. 

The fifth and sixth sections provide a school, 
in certain cases, where additional studies are 
to be pursued, " which shall be kept for the 
benefit of all the inhabitants of the town." 
The language here recognizes no discrimina- 
tion among the children, but seems directly to 
exclude it. 

In conformity with these sections is the 
peculiar phraesology of the memorable Colo- 
nial law of 1647, founding Common Schools, 
" to the end that learning be not buried in the 
graves of our forefathers." This law obliged 
towns having fifty families, " forthwith to ap- 
point one" within their limits "to teach all 
such children as shall resort to him, to write 
and read." (Ancient Charters, 186.) Here 
again there is no discrimination among the 
children. All are to be taught. 

On this legislation the Common Schools of 
Massachusetts have been reared. The clause 
of the Revised Statutes (chap. 23) and the 
statute (1838, chap. 154,) appropriating small 
sums, in the nature of a contribution, from the 
school fund for the support of common schools 
among the Indians, do not interfere with this 
system. These have the anomalous character 
of all .the legislation concerning the Indiana. 
It does not appear, however, that separate 
schools are established by law among the In- 
dians, nor that the Indians are in any way 
excluded from the Common Schools in their 
neighborhood. 

I conclude on this head, that there is but one 
Public School in Massachusetts. This is the 
Common School equally free to all the inhabit- 
ants. There is nothing establishing an exclu- 
sive or separate school for any particular class, 
rich or poor, Catholic or Protestant, white or 



8 



black. In the eye of the law there is but one 
class, where all interests, opinions, conditions, 
and colors commingle in harmony excluding 
none, comprehending all. 

EQUALITY UNDER JUDICIAL DECISIONS. 

The Courts of Massachusetts, in harmony 
with the Constitution and the Laws, have never 
recognized any discrimination founded on race 
or color, in the administration of the Common 
Schools; but have constantly declared the 
equal rights of all the inhabitants. 

There are only a few decisions bearing on this 
subject, but they all breathe one spirit. The 
sentiment of Equality animates them. In the 
case of Commonwealth vs. Davis, (6 Mass. R., 
146,) while declaring the equal rights of all 
the inhabitants, in both grammar and district 
schools, the Court said : 

" The schools required by the statute are to be 
maintained for the benefit of the whole town, as it 
is the wise policy of the law to give all the inhabitants 
equal privileges for the education of their children in 
the Public Schools. Nor is it in the power of the 
majority to deprive the minority of this privilege." 
* * * * "Every inhabitant of the town 
lias a right to participate in the benefits of both de- 
scriptions of schools, and it is not competent for a 
town to establish a grammar school for the benefit 
of one part of the town to the exclusion of the other, 
although the money raised for the support of schools 
may be in other respects fairly apportioned.'' 

Here is Equality from beginning to end. 

In the case of Withington vs. Eveleth, (7 
Pick., 106,) the Court said they " were all satis- 
fied that the power given to towns to determine 
and define the limits of school districts can be 
executed only by a geographical division of 
the town for that purpose." A limitation of 
the district merely personal was held invalid. 
This same principle was again recognized in 
Perry vs. Doe, (12 Pick. R,. 213.) where the 
Court say, " Towns, in executing the power to 
form school districts., are bound so to do it as 
to include every -inhabitant in some of the dis- 
tricts. They cannot lawfully omit any and thus 
deprive them of the benefits of our invaluable 
system of free schools.' : ' Thus at every point 
the Courthas guarded the Equal Rights of all. 

The Constitution, the legislation, and the 
judicial decisions of Massachusetts have now 
been passed in review. We have seen what is 
contemplated by the Equality secured by the 
Constitution; also what is contemplated by the 
system of Common Schools, as established by 
the laws of the Commonwealth and illustrated 
by decisions of the Supreme Court. _ The way 
is prepared to consider the peculiarities in the 
present case, and to apply the principle thus 
recognized in Constitution, in Laws, and judi- 
cial decisions. 

SEPARATE SCHOOLS INCONSISTENT WITU EQUALITY. 

It is easy to see that the exclusion of colored 
children from the Public Schools is a constant 
inconvenience to them and their parents, which 
white children and white parentsarenot obliged 
to bear. Here the facts are plain and un- 
answerable, showing a palpable violation of 



Equality. The black and white are not equal 
before the laic. I am at a loss to understand 
how anybody can assert that they are. 

Amongthe regulations of the Primary School 
Committee is one to this effect: " Scholars to 
go to the school nearest their residences. Ap- 
plicants for admission to our schools (with the 
exception and provision referred to in the pre- 
ceding rule) are especially entitled to enter the 
schools nearest to their places of residence." 
The exception here is "of those for whom 
special provision has been made" in separate 
schools ; that is, colored children. 

In this rule without the unfortunate excep- 
tion is part of the beauty so conspicuous 
in our Common Schools. It is the boast of 
England that, through the multitude of courts, 
justice is brought to every man's door. It 
may also be the boast of our Common Schools, 
that, through the multitude of schools, educa- 
tion in Boston is brought to every white man's 
door. But it is not brought to every black 
man's door. He is obliged to go for it to 
travel for it to walk for it often a great dis- 
tance. The facts in the present case are not 
so strong as those of other cases within my 
knowledge. But here, the little child, only 
five years old, was compelled, if attending the 
nearest African School, to go a distance of two 
thousand one hundred feet from her home, 
while the nearest Primary School was only nine 
hundred feet, and, in doing this, she would 
pass by no less than five different Primary 
Schools, forming part of our Common Schools, 
and open to white children, all of which were 
closed to her. Surely this is not Equality 
before the law. 

Such a fact is sufficient to determine this 
case. If it be met by the suggestion that the 
inconvenience is trivial, and such as the law 
will not notice, I reply that it is precisely such 
as to reveal an existing inequality, and there- 
fore the law cannot fail to notice it. There is 
a maxim of the illustrious civilian Dumoulin, 
a great jurist of France, which teaches that 
oven a trivial fact may give occasion to an im- 
portant application of the law. Moclica enini 
circumstanlia facii inducit magnam juris di- 
versitatem. Also from the best examples of 
our history we learn that the insignificance of 
a fact cannot obscure the grandeur of the prin- 
ciple at stake. It was a paltry tax on tea laid 
by a Parliament where they were not repre- 
sented that aroused our fathers to the struggles 
of the Revolution. They did not feel the incon- 
venience of the tax ; but they felt its oppression. 
They went to war for a principle. Let it not be 
said, then, that in the present case the inconven- 
ience is too slight to justify the appeal I make 
in behalf of colored children for Equality be- 
fore the law. 

Looking beyond the facts of this case it is 
apparent that the inconvenience from the ex- 
clusion of colored children is such as to affect 
seriously the comfort and coudition of the 
African race in Boston. The two Primary 



9 



schools open to them are in Belknap street and 
in Sun court. I need not add that the whole 
city is dotted with schools open to white chil- 
dren. The colored parents, anxious for the 
education of their children, are compelled to 
live in the neighborhood of the schools, to 
gather about them as in Eastern countries 
people gather near a fountain or a well. The 
liberty of choosing their homes, which belongs 
to the white man, is not theirs. Inclination, 
or business, or economy may call them to an- 
other part of the city ; but they are restrained 
for their children's sake. There is no such 
restraint upon the white man, for he knows 
that wherever in the city inclination, or busi- 
ness, or economy may call him, there will be 
a school open to his children near his door. 
Surely this is not Equality before the law. 

If a colored person, yielding to the necessi- 
ties of position, removes to a distant part of 
the city, his children may be compelled daily, 
at an inconvenience which will not be called 
trivial, to walk a long distance for the advan- 
tages of the school. In our severe winters this 
cannot be disregarded in the case of children 
so tender in years as those of the Primary 
schools. There is a peculiar instance of hard- 
ship which has come to my knowledge. A 
respectable colored parent became some time 
since a resident at East Boston, separated 
from the mainland by water. Of course there 
are Common Schools at East Boston, but none 
open to colored children. This parent was 
obliged to send his children, three in number, 
daily across the ferry to the distant African 
School. The tolls amounted to a sum which 
formed a severe tax upon a poor man, while 
the long way to travel was a daily tax upon the 
time and. strength of his children. Every toll 
paid by this parent, as every step taken by the 
children, testifies to that inequality which I 
now arraign. 

This is the conduct of a colored parent. He 
is well deserving of honor for his generous 
efforts to secure the education of his children. 
As they grow in knowledge, they will rise and 
call him blessed ; but at the same time they 
will brand as accursed that arbitrary discrim- 
ination of color in the Common Schools of Bos- 
ton which rendered it necessary for their father, 
out of small means, to make such sacrifices 
for their education. 

Here is a grievance, which, independent of 
any stigma from color, calls for redress. It is 
an inequality which the Constitution and the 
Laws of Massachusetts repudiate. But it is 
not on the ground of inconvenience only that 
it is odious. And this brings me to the next 
point. 

SEPARATE SCHOOLS ARE IN NATURE OF CASTE. 

The separation of children in the Schools, on 
account of race or color, is in the nature of 
Caste, and, on this account, a violation of 
Equality. The case shows expressly that the 
child was excluded from the school nearest to 
her dwelling the number in the school at the 



time warranting her admission " on the sole 
ground of* color." The first Majority Report 
presented to the School Committee, and men 
tioned in the statement of facts, presents the 
grounds of this discrimination with more full- 
ness, saying, " It is one of races, not of color, 
merely. The distinction is one which the Al- 
mighty has seenfittoestablish, and it is founded 
deep in the physical, mental, and moral na- 
tures of the two races. No legislation, no 
social customs, can efface this distinction." 
Words could not be chosen more apt than these 
to describe the heathenish relation of Caste. 

This term is from the Portuguese casta, which 
signifies family, breed, race, and is generally 
used to designate any hereditary distinction, 
particularly of race. It is most often applied 
in India; and it is there that we must go to 
understand its full force. A recent English 
writer says that it is " not only a distinction 
by birth, but is founded on the doctrine of an 
essentially distinct origin of the different races, 
which are thus unalterably separated. (Rob- 
erts on Caste, p. 134.) This is the very ground 
of the Boston School Committee. 

This word is not now for the first time ap- 
plied to the distinction between the white and 
black races. Alexander von Humboldt, speak- 
ing of the negroes in Mexico, characterizes 
them as a Caste. Following him, a recent 
political and juridical writer of France uses 
the same term to denote, not only the distinc- 
tions in India, but those of our own country, -" 
especially referring to the exclusion of colored 
children from the Common Schools, as among 
"the humiliating and brutal distinctions" by 
which their Caste is characterized. It is, then, 
on authority and reason alike, that we apply 
this term to the hereditary distinction on ac- 
count of color now established in the Schools 
of Boston. 

Boston is set on a hill, and her schools have 
long been the subject of observation, even in 
this respect. As far back as the last century 
the French Consul there made a report on our 
"separate" school, 1 and de Tocqueville in his 
masterly work testifies with evident pain that 
the same schools do not receive the children 
of the African and European. 2 All this is 
only a reproduction of the Cagots in France, 
who for generations were put under the ban 
there relegated to a corner of the church 
separate from the rest, and, even in the last rest- 
ing place, where all are equal, these wretched 
people are separated by a line of demarkation 
from the rest, (a) The Cagots are called an 
"accursed race," and this language may be 
applied to the African under our laws. Strange 
that, here under a State Constitution declaring 
the Equality of all men, we should follow the 

*1. Charles Comte, Traite de Legislation, torn .4, pp. 
129, 445. 

1 Grt'goiro, De la Litterature des Negres, p. 177. 

2 De Tocqueville. Democracy in America, vol. II, 
p. 461, chap. XVIII, I 2. 

a Francisque Michel, Histoire des Races Maudites, 
torn. 1, p. 3. 



10 



worst precedents and establish among us a 
Caste. 

Seeing the discrimination in this light, we 
learn to appreciate its true character. In In- 
dia, Brahmins and Sudras, from generation to 
generation, were kept apart. If a Sudra pre- 
sumed to sit upon a Brahmin's carpet his pun- 
ishment was banishment. With similar inhu- 
manity here, the black child, who goes to sit 
on the same benches with the white child, is 
banished, not from the country, but_ from the 
school. In both cases it is the triumph of 
Caste. But the offense is greater with us, be- 
cause, unlike the Hindoos, we acknowledge 
that men are bom equal. 

So strong is my desire that the court should 
feel the enormity of this system, thus legalized, 
not by the Legislature, but by an inferior local 
board, that I shall introduce an array of wit- 
nesses all testifying to the unchristian charac- 
ter of Caste, as it appears in India, where it is 
most studied and discussed. _ As you join in 
detestation of this foul institution, you will 
learn to condemn its establishment among our 
children. 

I borrow these authorities from the work of 
Mr. Roberts, to which I have already referred, 
Caste opposed to Christianity, published in 
London, 1847. Time will not allow me to 
make comments. I can only quote the au- 
thorities and then pass on. 

The eminent Bishop Heber, of Calcutta, 
characterizes Caste in these forcible terms : 

"It is a system which tends, mors than any else the 
devilhas yet invented, to destroy the feelings of general 
benevolence, and to make nine tenths of mankind the 
hopeless slaves of the remainder." 

B.ut this is the very system now in question 
here. Bishop Wilson, also of Calcutta, the 
successor of Heber, says : 

"The Gospel recognizes no such distinctions as 
those of Castes, imposed by a heathen usage, bearing 
in some respects a supposed religious obligation, 
condemning those in the lower ranks to perpetual 
abatement, placing an immovable barrier againstall 
general advance and improvement in society, cutting 
asunder the bonds of human fellowship on the one 
hand, and preventing thoso of Christian love on the 
other. Such distinctions, I say, the Gospel does not 
recognize. On the contrary, it teaches us that God 
'hath made of one blood all the nations of men.' " 

The same sentiment is echoed by Bishop 
Corrie, of Madras : 

"Thus Caste sets itself up as a judge of our Saviour 
himself. Ilis command is, 'Condescend to men of 
low estate. Esteem others better than yourself.' 
'No,' says Caste, 'do not commune with low men; 
consider yourself of high estimation. Touch not, 
taste not, handle not.' Thus Caste condemns the 
Saviour." 

Here is the testimony of Rev. Mr. Rhenius, 
a zealous and successful Missionary: 

" I have found Caste, both in theory and practice, 
to be diametrically opposed to the Gospel, which 
inculcates love, humility, and union; whereasCaste 
teaches the contrary. It is a fact, in those entire 
congregations where Caste is allowed, the spirit of 
the Gospel does not enter; whereas in those from 
Which it is excluded, we see the fruits of the Gospel 
spirit." 



Another Missionary, Rev. C. Mault, follows 

in similar strain: 

"Caste must be entirely renounced; for it is a 
noxious plant, by the side of which the graces cannot 
grow; for facts demonstrate, that where it has been 
allowed, Christianity has never flourished." 

So also does the Rev. John McKenny, a 

Wesleyan Missionary: 

"I have been upward of twelve years in India, 
and have directed much of my attention to the sub- 
ject of Caste, and am fully of opinion, that it is alto- 
gether contrary to the nature and principles of the 
Gospel of Christ, and therefore ought not be admitted 
into the Christian Church." 

So also the Rev. R. S. Hardy, a Wesleyan 

Missionary, and author of "Notices of the 

Holy Land:" 

" The principle of Caste I consider so much at vari- 
ance with the spirit of the Gospel, as to render im- 
possible, where its authority is acknowledged, the 
exercise of many of the most beautiful virtues of 
our holy religion." 

So also the Rev. D. J. Gorgerly, of the 

same Society : 

" I regard the distinction of Caste, both in its prin- 
ciples and operations, as directly opposed to vital 
godliness, and consequently inadmissible into the 
Church of Christ." 

So also the Rev. W. Bridgnall, of the same 
Society : 

"I perfectly agree with a writer of respectable 
authority, in considering the institution of Caste as 
the most formidable engine that was ever invented 
for perpetuating the subjugation of men ; so that, as 
a friend of humanity only, I should feel myself bound 
to protest against and oppose it; but in particular 
as a Christian, I deem it my obvious and imperative 
duty whollv to discountenance it, conceiving it to be 
utterly repugnant to all the principles and the whole 
spirit of Christianity. He who is prepared to support 
the system of Caste, is. in my judgment, neither a 
true friend of man, nor a consistent follower of 
Christ." 

So also the Rev. S. Aliens, of the same 

Society : 

"During a residence of more than nine years in 
Ceylon, I have had many opportunities of witnessing 
the influence of Caste on the minds of the natives; 
and I firmly believe it is altogether opposed to-tho 
spirit of Christianity ; and it appears to mo that its 
utter and speedy extinction cannot but be desired 
by every minister of Christ." 

So also Rev. R. Stoup, of the same Society: 

"From my own personal observation, during a 
four-years' residence in Ceylon, I am decidedly of 
opinion that Caste is directly opposed to the spirit of 
Christianity, and, consequently, ought to be discour- 
aged in every possible way." 

I conclude these European authorities with 
the fulmination of Rev. Joseph Roberts, author 
of the work on Caste : 

' ' We must, in everyplace, witness against it, and shoio 
that even Government itself is nurturing a tremendous evil, 
that through its heathen managers it is beguiled into a 
course which obstructs the progress of civilizat ion, which 
keeps in repulsion our kindlier feelings, which cre- 
ates and nurses distinctions the most alien to all the 
cordialities of life; and which, more than any other 
thing, makes the distance so immense betwixt the 
governed and governors." 

There is also the testimony of native Hindoos 
converted to Christianity who denounce Caste 
as Jefferson denounced the whole brood of 
slavery. Listen to the voice of a Hindoo: 

"Caste is the stronghold of that principle of pride 



11 



which makes a man think of himself more highly 
than he ought, to think. Casteinfuses itself into and 
forms the very essence of pride itself." 

Another Hindoo speaks as follows: 

"I therefore regard Caste as opposed to the main 
scope, principles, and doctrines of Christianity ; for, 
either Caste must be admitted to bo true and of divine 
authority, or Christianity must be so admitted. W 
you admit Caste to be true, the whole fabric of Chris- 
tianity mustcoine down ; for the nature of Caste and 
its associations destroy the first principles of Chris- 
tianity. Caste makes distinctions among creatures 
where God has made none." 

Another native expresses himself thus : 

" When God made man, his intention was, not that 
they should be divided, and hate one another, and 
show contempt, and think more highly of themselves 
than others. Caste makes a man think that he is 
holier than another and that he has some inherent 
virtue which another has not. It makes him despise 
all those that are lower than himself, in regard to 
Caste, which is not the design of God." 

Still another native uses this strong language : 

"Yes, we regard Caste as part and parcel of idola- 
try, and of all heathen abominations, because it is 
in many ways contrary to God"s word, and directly 
contrary to God himself." 

I hope that I have not occupied too much 
time with this testimony, which is strictly in 
point. There is not a word which is not plainly 
applicable to the present case. The witnesses 
are competent and in their words, as in a 
mirror, may be seen the true character of the 
discrimination which I now arraign before this 
court. 

It will be vain to say that this distinction, 
though seeming to be founded on color, is in 
reality founded on natural and physical peculi- 
arities, independent of color. Whatever they 
may be, there are peculiarities of race, and any 
discrimination on this account constitutes the 
relation of Caste. Disguise it as you will, it is 
nothing but this hateful, irreligious institution. 
But the words Caste and Equality are contra- 
dictor}'. They mutually exclude each other. 
Where Caste is, there cannot be Equality. 
Where Equality is. there cannot be Caste. 

Unquestionably there is a distinction between 
the Ethiopian and the Caucasian. Each re- 
ceived from the hand of God certain charac- 
teristics of color and form. The two may not 
readily intermingle, although we are told by 
Homer that Jupiter 

"did not disdain to graco 
The feast of Ethiopia's blameless race." 

One may be uninteresting or offensive to the 
other, precisely as individuals of the same race 
and color may be uninteresting or offensive to 
each other. But this distinction can furnish 
no ground for any discrimination before the 
law. 

We abjure nobility of all kinds ; but here is 
a nobility of the skin. We abjure all hered- 
itary distinctions ; but here is an hereditary dis- 
tinction, founded not on the merit of the an- 
cestor, but on his color. We abjure all privileges 
from birth ; but here is a privilege which de- 
pends solely on the accident whether an ances- 
tor is black or white. We abjure all inequality 
before the law : but here is an inequality which 



touches not an individual, but a race. We 
revolt at the relation of Caste ; but here is a 
Cash! which is established under a Constitution 
declaring that all men are bom equal. 

Condemning Caste and inequality before the 
law, the way is prepared to consider more 
particularly the powers of the School Commit- 
tee. Here it will be necessary to enter into 
details. 

COMMITTEE HAVE NO POWER TO DISCRIMINATE ON 

ACCOUNT OF COLOR. 

The Committee of Boston charged with the 
superintendence of the Common Schools have 
no power to make any discrimination on account 
of race or color. 

It has been seen already that this power is 
inconsistent with the Constitution and Laws of 
Masssachusetts, and with adjudications of the 
Supreme Court. The stream cannot rise higher 
than the fountain-head ; and if there be nothing 
in these elevated sources from which this power 
can be derived it must be considered a nullity. 
Having seen that there is nothing, I might here 
stop ; but I wish to show the shallow origin of 
this pretension. 

Its advocates, unable to find it among express 
powers conferred upon the School Committee, 
and forgetful of the Constitution, where "either 
it must live or bear no life," place it among 
implied or incidental powers. The Revised 
Statutes (cap. 23, 10) provide for a School 
Committee "who shall have a general charge 
and superintendence of all the Public Schools" 
in their respective towns. Another section (15) 
provides that the " Committee shall determine 
the number and qualifications of the scholars 
to be admitted into the school kept for the use 
of the whole town." These are all the clauses 
conferring powers cm the Committee. 

From these no person will imply a power to 
defeat a cardinal principle of the Constitution. 
It is absurd to suppose that the Committee in 
general charge and superintendence of schools, 
and in determining the number and qualifica- 
tions of scholars, may ingraft upon the schools 
a principle of inequality, not only unknown to 
the Constitution and Laws, but in defiance of 
their letter and spirit. In the exercise of 
these powers they cannot put colored children 
to personal inconvenience greater than that 
of white children. Still further, they cannot 
brand a whole race with the stigma of infe- 
riority and degradation, constituting them into 
a Caste. They cannot in any way violate that 
fundamental right of all citizens, Equality 
before the laiv. To suppose that they can do 
this would place the Committee above the 
Constitution. It would enable them, in the 
exercise of a brief and local authority, to 
draw a fatal circle, within which the Constitu- 
tion cannot enter ; nay, where the very Bill 
of Rights becomes a dead letter. 

In entire harmony with the Constitution, the 
law says expressly what the Committee shall 
do. Besides the general charge and superin- 
tendence, they shall " determine the number 



12 



and the qualifications of the scholars to be 
admitted into the schools;" thus, according 
to a familiar rule of interpretation, excluding 
other powers: Mentio unius est exclusio alte- 
rius. The power to determine the number is 
easily executed, and admits of no question. 
The power to determine the qualifications, 
though less simple, must be restrained to age, 
sex, and fitness, moral and intellectual. The 
fact that a child is black, or that he is white, 
cannot of itself be a qualification or a dis- 
qualification. Not to the skin can we look for 
the criterion of fitness. 

It is sometimes pretended that the Committee, 
in the exercise of their power, are intrusted with 
a discretion under which they may distribute, 
assign, and classify all children belonging to 
the schools according to their best judgment, 
making, if they think proper, a discrimination 
of race or color. Without questioning that they 
are intrusted with a discretion, it is outrageous 
to suppose that their discretion can go to this 
extent. The Committee can have no discretion 
which is not in harmony with the Constitution 
and Laws. Surely they cannot in their mere 
discretion nullify a sacred and dear-bought 
principle of Human Rights expressly guaran- 
tied by the Constitution. 

REGULATIONS OF COMMITTEE MUST BE REASONABLE. 

Still further and here I approach a more 
technical view of the subject it is an admitted 
principle that the regulations and by-laws of 
municipal corporations must be reasonable, or 
they are inoperative and void. This has been 
recognized by the Supreme Court in two different 
cases, Commonwealth vs. Worcester, (4 Pick. 
R.,4G2;) inVardine'scase, (6 Pick., 187.) In 
another case, City of Boston vs. Jesse Shaw, 
(1 Met., 130,) it was decided that a by-law of 
Boston prescribing a particular form of contri- 
bution toward the expenses of making the 
common sewers was void for inequality and 
unreasonableness. 

Assuming that this principle is applicable to 
the School Committee, their regulations and 
by-laws must be reasonable. Their discretion 
must be exercised in a reasonable manner. 
And this is not what the Committee or any 
other body of men think reasonable, but what 
13 reasonable in the eye of the lav/. It must 
be legally reasonable. It must be approved 
by the reason of the Law. 

Here we are brought once more in another 
form to the question of the discrimination on 
account of color. Is this legally reasonable? 
Is it reasonable in the exercise of a just dis- 
cretion to separate descendants of the African 
race from white children merely in consequence 
of descent? Passing over those principles of 
the Constitution and those provisions of Law 
which of themselves decide the question, con- 
stituting as they do the highest reason, but 
which have been already amply considered, 
look for a moment at the educational system 
of Massachusetts, and it will be seen that prac- 
tical! v no discrimination of color is made bv 



Law in any part of it. A descendant of the 
African race may be Governor of the Com- 
monwealth, and as such, with the advice and 
consent of the Council, may select the Board 
of Education. As Lieutenant Governor hemay 
be ex officio a member of the Board. He may 
be Secretary of the Board, with the duty im- 
posed on him by law of seeing " that all chil- 
dren in this Commonwealth who depend upon 
Common Schools for instruction may have the 
best education which those schools can be made 
to impart." He may be member of any School 
Committee or teacher in any Common School 
of the State. As legal voter he can vote in the 
selection of any School Committee. 

Thus, in every department connected with 
our Common Schools, throughout the whole 
hierarchy of their government, from the very 
head of the system down to the humblest usher 
in the humblest Primary school, and to the 
humblest voter, there is no distinction of color 
known to the Law. It is when we reach the 
last stage of all, the children themselves, 
that the beautiful character of the system is 
changed to the deformity of Caste, as, in the 
picture of the ancient poet, what above was 
a lovely woman terminated below in a vile, 
unsightly fish. And all this is done by the Com- 
mittee, with more than necromantic power, in 
the exercise of a mere discretion. 

It is clear that the Committee may classify 
scholars, according to age and sex, for the 
obvious reasons that these distinctions are in- 
offensive and especially recognized as legal in 
the law relating to schools. (Revised Statutes, 
c. 23, $G3.) They may also classify scholars, 
according to moral and intellectual qualifica- 
tions, because such a power is necessary to the 
government of schools. But the Committee 
cannot assume, a priori, and withoutindividual 
examination, that an entire race are so deficient 
in proper moral and intellectual qualifications 
as to justify the degradation of all to a class by 
themselves. Such an exercise of discretion 
must be unreasonable, and therefore illegal. 

SEPARATE SCHOOL NOT AN' EQUIVALENT FOR COMMON 
SCHOOL. 

But it is said that the Committee, in thus 
classifying the children, have not violated any 
principle of Equality, inasmuch as they pro- 
vide a school, with competent instructors, for 
colored children, where they have advantages 
equal to those provided for white children. It 
is argued that in excluding colored children 
from Common Schools open to white children, 
the Committee furnish an equivalent. 

To this there are several answers. I shall 
touch them only briefly, as the discussion, 
through which we have now traveled, substan- 
tially covers the whole ground. 

1. The separate school for colored children 
is not one of the schools established by the 
law relating to Public Schools. (Revised Stat- 
utes, c. 23.) It is not a Common School. As 
such, it has no legal existence, and, therefore, 
cannot be a legal equivalent. In addition to 



o 



what has been already said, bearing on this 
head, 1 coll attention to one other aspect. It 
has been decided that a town can execute its 
power to form a School District_ only by a 
geographical division of its territory ; that 
there cannot be what the Court call a personal 
limitation of the district, and that certain indi- 
viduals cannot be selected and sea off by them- 
selves into a District. {Perry vs. Dover, 12 
Pick., 213.) The admitted effect of this decis- 
ion is to render a separate school for colored 
children illegal and impossible in towns divided 
into districts. They are so regarded in Salem, 
Nantucket, New Bedford, and in other towns 
of this Commonwealth. The careful opinion 
of a member of this Court, who is not sitting 
in this case, given while at the bar, (Hon. 
Richard Fletcher,) and extensively published, 
is considered as practically settling this point. 

But there cannot be one law for the country 
and one for Boston. It is true that Boston is 
not divided strictly into geographical districts. 
In this respect its position is anomalous. But 
if separate colored schools are illegal and im- 
possible in the country, they must be illegal 
and impossible in Boston. It is absurd to 
suppose that this city failing to establish School 
Districts and treating all its territory as a single 
district, should be able to legalize a Caste 
school, which otherwise it could not do. Bos- 
ton cannot do indirectly what other towns can- 
not do directly. 

This is the first answer to the allegation of 
equivalents. 

2. The second is that, in point of fact the 
separate school is not an equivalent. We have 
already seen that it is the occasion of incon- 
venience to colored children, which would not 
arise if they had access to the nearest common 
schools, besides compelling parents to pay an 
additional tax, and inflicting upon child and 
parent the stigma of Caste. Still further, and 
this consideration cannot be neglected, the 
matters taught in the two schools may be 

Srecisely the same ; but a school exclusively 
evoted to one class, must differ essentially in 
spirit and character from that Common School 
known to the lav/, where all classes meet to- 
gether in Equality. It is a mockery to call it 
an equivalent. 

3. Butthereisyetnnotheranswer. Admitting 
that it is an equivalent, still the colored chil- 
dren cannot be compelled to take it. Their 
rights are J-Jqttcdity before the laiv ; nor can 
they be called to renounce one jot of this. They 
have an equal right with white children to the 
Common Schools. A separate school, though 
well endowed, would not secure to them that 
precise Equality which they would enjoy in 
the Common Schools. The Jews in Rome are 
confined to a particular district called the 
Ghetto, and in Frankfort to a district known as 
the Jewish Quarter. It is possible that their 
accommodations are as good as they would bo 
able to occupy if left free to choose throughout 
Rome and Frankfort; but this compulsory seg- 



regation from the mass of citizens is of itself 
an inequality which we condemn. It is a 
vestige of ancient intolerance directed against 
a despised people. It is of the same character 
with the separate schools in Boston. 

Thus much for the doctrine of equivalents 
as a substitute for equality. 

DISASTROUS CONSEQUENCES OF TOWER TO HAKE SEP- 
ARATE SCHOOLS. 

In determining that the Committee have no 
power to make this discrimination, we are 
strengthened by another consideration. If 
the power exists in the present case it cannot 
be restricted to this alone. The Committee 
may distribute all the children into classes, 
according to mere discretion. They may estab- 
lish a separate school for Irish or Germans, 
where each may nurse an exclusive nationality 
alien to our institutions. They may separate 
Catholics from Protestants, or, pursuing their 
discretion still further, may separate different 
sects of Protestants, and establish one school 
for Unitarians, another for Presbyterians, 
another for Baptists, and another for Method- 
ists. They may establish a separate school 
for the rich, that the delicate taste of this 
favored class may not be offended by the hum- 
ble garments of the poor. They may exclude 
the children of mechanics, and send them to 
separate schools. All this, and much more, 
can be done in the exercise of that high-handed 
power which makes a discrimination on account 
of race or color. The grand fabric of our 
Common Schools, the pride of Massachusetts 
where, at the feet of the teacher, innocent 
childhood should come, unconscious of all dis- 
tinctions from birth where the equality of the 
Constitution and of Christianity should be in- 
culcated by constant precept and example 
will be converted into a heathen system of 
proscription and Caste. We shall then have 
many different schools, representatives of as 
many different classes, opinions, and preju- 
dices ; but we shall look in vain for the true 
Common School of Massachusetts. Let it not 
be said that there is little danger thaf any 
Committee will exercise a discretion to this 
extent. They must not be intrusted with the 
power. Here is the only safety worthy of a 
free people. 

BY-LAW VOID. 

The Court will declare the by-law of the 
School Committee unconstitutional and illegal, 
although there are no express words of pro- 
hibition in the constitution and laws. 

It is hardly necessary to say anything in sup- 
port of this proposition. Slavery was abolished 
in Massachusetts, under the declaration of 
rights in our Constitution, without any specific 
words of abolition in that instrument, or in any 
subsequent legislation. (Commonwealth vs. 
Aves, 18 Pick. R., 210.) The same words, 
which are potent to destroy slavery, must be 
equally potent against any institution founded 
on inequality or Caste. The case of Boston 
vs. Shaw, (1 Metcalf, 130,) to which reference 



14 



has been already made, where a by-law of the 
city was set aside as unequal and unreasonable, 
and therefore void, affords another example of 
the power which I now invoke. But author- 
ities are not needed. The words of the Con- 
stitution are plain, and it will be the duty of 
the Court to see that they are applied to the 
discrimination now in question. 

The Court might justly feel delicacy if they 
were called to revise a law of the Legislature. 
But it is simply the action of a local commit- 
tee that they are to overrule. They may also 
be encouraged by the circumstance, that it is 
only to the Schools of Boston that their 
decision can be applicable. Already the 
other towns have voluntarily banished Caste. 
Banishing it from the schools of Boston, the 
Court will bring them into much- desired har- 
mony with the schools of other towns, and 
with the whole system of Common Schools. I 
am unwilling to suppose that there can be 
any hesitation or doubt. If any should arise, 
there is a rule of interpretation which I invoke. 
According to familiar practice, every interpret- 
ation is made always in favor of life or liberty. 
So here, the Court should incline in favor of 
Equality, that sacred right which is the com- 
panion of these other rights. In proportion 
to the importance of this right, will the Court 
be solicitous to vindicate and uphold it. And 
in proportion to the opposition which it en- 
counters from prejudices of society, will the 
Court brace themselves to this task. It has 
been pointedly remarked by Rousseau, that 
"It is precisely because the force of things 
tends always to destroy Equality, that the 
force of legislation should always tend to 
maintain it." (Contrat Social, liv. 2, chap. 
11.) In similar spirit, and for the same reason, 
the Court should alv/ays tend to maintain 
equality. 

ORIGIN OP SEPARATE SCHOOLS. 

In extenuation of the Boston system, it is 
sometimes said that the separation of white 
and black children was originally made at the 
request of colored parents. This is substan- 
tially true. It appears from the interesting letter 
of Dr. Belknap, in reply to Judge Tucker's 
queries on Slavery in Massachusetts, at the 
close of the last century, (4 Mass. Hist. Coll., 
207,) that at that time no discrimination on 
account of color existed in the Common Schools 
of Boston. t; The same provision," he says, 
11 is made by the public for the education of 
the children of the blacks, as for those of the 
whitee. In this town, the Committee who super- 
intend the free schools have given in charge 
to the schoolmasters to receive and instruct 
black children as well as white." Dr. Bel- 
knap adds that he had not heard of more 
than three or four who took advantage of this 
privilege, though the blacks in Boston proba- 
bly exceeded one thousand. It is to be feared 
that the inhuman bigotry of Caste sad relic 
of the servitude from which they had just 
escaped! was at this time too strong to allow 



colored children kindly welcome in the free 
schools, and that, from timidity and ignorance, 
they hesitated to take a place on the same 
benches with the white children. Perhaps the 
prejudice was so inveterate that they could not 
venture to assert their rights. In 1800 a peti- 
tion from sixty six colored persons was pre- 
sented to the School Committee, requesting the 
establishment of a school for their benefit. 
Private munificence came to the aid of the city, 
and the present system of separate schools was 
brought into being. 

These are interesting incidents belonging to 
the history of the Boston Schools, but they 
cannot in any way affect the rights of colored 
people or the powers of the Committee. These 
rights and these powers stand on the Constitu- 
tion and Laws. Without adopting the sugges- 
tion of Jefferson, that one generation cannot 
by legislation bind its successors, all must agree 
that the assent of a few to an unconstitutional 
and illegal course nearly half a century ago, 
when their rights were imperfectly understood, 
cannot alter t'he Constitution and the Laws so 
as to bind their descendants forever in the thrall 
of Caste. Nor can the Committee derive from 
this assent, or from any lapse of time, powers 
in derogation of the Constitution and the Rights 
of Man. 

It is clear that the sentiments of the colored 
people have now changed. The present case, 
and the deep interest which they manifest in it, 
thronging the court to hang on this discussion, 
attest the change. With increasing knowledge 
they have learned to know their rights and feel 
the degradation to which they are doomed. 
Their present effort is the token of a manly 
character which this Court will cherish and 
respect. The spirit of Paul now revives in 
them, even as when he cried, " I am a Roman 
citizen." 

EVILS OF SEP ARTE SCHOOLS. 

But it is said that these separate schools are 
for the benefit of both colors and of the Public 
Schools. In similar spirit Slavery is some- 
times said to be for the benefit of master and 
slave and of the country where it exists. 
There is a mistake in the one case as great as 
in the other. This is clear. Nothing unjust, 
nothing ungenerous can be for the benefit 
of any person or anything. From some seem- 
ing selfish superiority, or from the gratified 
vanity of class, short-sighted mortals may hope 
to draw permanent good ; but even-handed 
justice rebukes these efforts and redresses the 
wrong. The whites themselves are injured by 
the separation. Who can doubt this? With 
the law as their monitor they are taught to 
regard a portion of the human family, children 
of God, created in His image, coequalsin His 
love, as a separate and degraded class ; they 
are taught practically to deny that grand reve- 
lation of Christianity, the Brotherhood of 
Man. Hearts while yet tender with childhood 
are hardened and ever afterward testify to this 
legalized uncharitableness. Nursed in the 



15 



sentiment of Caste, receiving it with the ear- 
liest food of knowledge, they are unable to 
eradicate it from their natures, and then 
weakly and impiously charge upon our Heav- 
enly Father the prejudice derived from an 
unchristian school. Th characters are de- 
based, and they becom 3 fit for the duties 
of citizenship. 

The Helots of Span bliged to intoxi- 

cate themselves tha pie they might 

teach the deform i\ temperance. Thus 

sacrificing one cla6S to Lhe'other both were 
degraded the i rtan and the 

abased Helot. 1 jmmittee of Bos- 

ton act with a s' Jged injustice 

in sacrificing colored cl < the prejudice 

or fancied advant 

A child should ' n wickedness, 

and, as he is yet ;: ipressions, to 

shun wicked men. s right, when 

speaking of a person morally wrong, false, and 
unjust, he calls k and warns against 

him : 

"Hie niger est, hu 1, Romane, caveto." 
The Boston Committee adopt the warning, 
but apply it not to the black in heart, but the 
black in skin. They forget the admonition ad- 
dressed to the prophet: "But the Lord said 
unto Samuel, look not on his countenance, for 
the Lord seeth not as man seeth ; for man 
looketh at the outward appearance, but the 
Lord looketh at the heart." (1 Samuel, chap. 
16, v. 7.) The Committee look only on the 
outward appearance without looking at the 
heart, and then fancy that they are doing right! 

Who can say that this does not injue the 
blacks? Theirs, in its best estate, is an un- 
happy lot. A despised class, blasted by preju- 
dice and shut out from various opportunities, 
they feel this proscription from the Common 
Schools as a peculiar brand. Beyond this, it 
deprives them of those healthful animating in- 
fluences, which would come from participation 
in the studies of their white brethren. It adds 
to their discouragements. It widens their sep- 
aration from the community, and postpones 
that great day of reconciliation which is sure 
to come. 

The whole system of Common Schools suffers 
also. It is a narrow perception of their high 
aim, which teaches that they are merely to fur- 
nish an equal amount of knowledge to all, and, 
therefore, provided all be taught, it is of little 
con^-cpic-nce where, and in what company. 
The law contemplates not only that all shall 
be taught, but that all shall be taught together. 
They are not only to receive equal quantities 
of knowledge, but all are to receive it in the 
same way. All are to approach the same com- 
mon fountain together; nor can there be any 
exclusive source for any individual or any class. 
The school is the little world where the child 
is trained for the larger world of life. It is 
the microcosm preparatory to the macrocosm, 
and, therefore, it must cherish and develop the 
virtues and the sympathies needed in the larger 



world. And since, according to our institu- 
tions, all classes, without distinction of color, 
meet in the performance of civil duties, so 
should they all, without distinction of color, 
meet in the school beginning there those 
relations of Equality which Constitution and 
Laws promise to all. 

As the State derives strength from the unity 
and solidarity of its citizens without distinc- 
tion of class, so the school derives strength 
from the unity aud solidarity of all classes 
beneath its roof. In this way the poor, the 
humble, and the neglected share not only the 
companionship of the more favored, but enjoy 
also the protection of their presence, which 
draws toward the school a more watchful super- 
intendence. A degraded or neglected class, if 
left to themselves, will become more degraded 
or neglected. "To him that hath shall be 
given;" and the world, true to these words, 
turns from the poor and outcast to the rich and 
fortunate. Happily our educational system, by 
the blending of all classes, draws upon the 
whole school that attention which is too gen- 
erally accorded only to the favored few, and 
thus secures to the poor their portion of the 
fruitful sunshine. But the colored children, 
placed apart in separate schools, are deprived 
of this peculiar advantage. 

Nothing is more clear than that the welfare 
of classes, as well as of individuals, is promoted 
by mutual acquaintance. The French and 
English, for a long time regarded as natural 
enemies, have at last, from more intimate 
communion, found themselves natural friends. 
Prejudice is the child of ignorance. It is sure 
to prevail where people do not know each other. 
Society and intercourse are means established 
by Providence for human improvement. They 
remove antipathies, promote mutual adaptation 
and conciliation, and establish relations of 
reciprocal regard. Whoso sets up barriers to 
these, thwarts the ways of Providence, crosses 
the tendencies of human nature, and directly 
interferes with the laws of God. 

DUTY OF THE COURT. 

May it please your Honors : Such are some 
of the things which I have felt it my duty to 
say in this important cause. I have occupied 
much time, but I have not yet exhausted the 
topics. Still, which way soever we turn, we 
are brought back to one single proposition 
the Equality of men before the law. This 
stands as the mighty guardian of the colored 
children in this case. It is the constant, ever- 
present, tutelary genius of this Commonwealth, 
frowning upon every privilege of birth, every 
distinction of race, every institution of Caste. 
You cannot slight it, or avoid it. You cannot 
restrain it. God grant that you may welcome 
it. Do this, and your words will be a "char- 
ter and freehold of rejoicing" to a race which, 
by much suffering, has earned a title to much 
regard. Your judgment will become a sacred 
landmark, not in jurisprudence only, but in the 
history of Freedom, giving precious encourage- 



6 



rnent to the weary and heavy-laden wayfarers 
in this great cause. Massachusetts through 
you, will have fresh title to regard, and be once 
more, as in times past, an example to the whole 
land. 

Already you have banished Slavery from this 
Commonwealth. I call upon you now to ob- 
literate the last of its footprints, and to banish 
the last of the hateful spirits in its train. The 
law interfering to prohibit marriages between 
blacks and whites has been abolished by the 
Legislature. Railroads which, imitating the 
Boston schools, placed colored people apart by 
themselves, are compelled, under the influence 
of an awakened public sentiment, to abandon 
this regulation and to allow them the privileges 
of other travelers. Only recently I have read 
that his Excellency, our present Governor, 
took his seat in a train by the side of a negro. 
In the Caste schools of Boston the prejudice of 
color seeus its hnai refuge, it is for you to 
drive it forth. You do well when you rebuke 
and correct individual offenses ; but it is a 
higher office to rebuke and correct a vicious 
institution. Each individual is limited in influ- 
ence ; but an institution has the influence of 
numbers organized by law. The charity of 
one man may counteract or remedy the un- 
charitableness of another ; but no individual 
can counteract or remedy the uncharitableness 
of an established institution. Against it pri- 
vate benevolence is powerless. It is a monster 
which must be hunted down by the public and 
by the constituted authorities. And such is 
the institution of Caste in the Common Schools 
of Boston, which now awaits a just condem- 
nation from a just Court. 

One of the most remarkable expositions of 
slavery is from the pen of Condorctt in a 
note to the "Thoughts'' of Pascal. Voltaire in 
his later commentary on the same text speaks 
of this "terrible" note and adopts its con- 
clusion. In the course of this arraignment 
the philosopher, painting the character of the 
slave- master says, ' Such is the excess of his 
stupid contempt for this wretched race that 
returning to Europe he is indignant to see 
them clothed as men and placed by his side.' " 
(1.) Thus the repugnance of the slave-mas- 
ter to see the wretched race placed by his 
side is adduced as crowniGg evidence ofthe in 
humanity of slavery. But this very repug- 
nance has legal sanction among us, and you 
are to determine whether it shall be longer 
permitted. Slavery in one of its enormities is 
now before you for judgment. Do not hesi- 

> 

(1.) Penates de Pascal, note de Condorcet No. 109. 



tate to strike it. Let t> e blow fall which shall 
end its domination herVin Massachu . 

The civilization of e age joins i; 
peal. Allow me to re< ir.d yen that this pre- 
judice of color is pecul&H- to our cc untry. You 
do not forget that two i'Duths of African blood 
only recently gained tho highest lienors in a 
college at Paris, and rjh the same day dined 
with the King of France, the descendant of St. 
Louis, at the Palace of theTuileries. And let 
me add, if I may refer to my own experience, 
that at the School of Law in Paris, I have sat. 
for weeks, on the saVe benches with colored 
persons, listening, 1';.. myself, to the learned 
lectures of Degeran 3o .ind of Rossi nor do I 
remember, in the % of sensitive young 

men, any feeling tfywaM them except of com- 
panionship and respect. In Italy, at the Con- 
vent of Pallazuola, on tke shores ofthe Alban 
Lake, and the very site of the ancient Alba 
Longa where I was once a guest, I hav;> ssen, 
for days, a native of Abyssinia, only recently 
from his torrid home, and ignorant ofthe lan- 
guage spoken about him, mingling with the 
Franciscan friars, whose visitor and scholar he 
was, in delightful and affectionate familiarity. 
Do I err in saying that the Christian spirit 
shines in these examples ? 

And, finally, this Christian spirit I invoke. 
Where this prevails there is neither Jew nor 
Gentile, Greek nor barbarian, bond nor free; 
but all are alike. From this we derive new and 
solemn assurance of the Equality of man, as 
an ordinance of God. Human bodies may be 
unequal in beauty or strength ; these mortal 
cloaks of flesh may differ, as do these worldly 
garments : these intellectual faculties may vary, 
as do opportunities of action and advantages 
of positions ; but amid all unessential differ- 
ences there is essential agreement and equal- 
ity. Dives and Lazarus were equal in the 
sight of God. They must be equal in the sight 
of all just institutions. 

This is not all. The vaunted superiority of 
the white race imposes corre.' bonding duties. 
The faculties with which they arc endowed, 
and the advantages they possess, must be ex- 
ercised for the good of all. If the colored 
people are ignorant, degraded, and unhappy, 
then should they be especial objects of your 
From the abundance of your posses- 
sions you must seek to remedy their lot. And 
this Court, which is parent to all the unfor- 
tunate children of the Commonwealth, will 
show itself most truly parental, when it reaches 
down, and, with strong arm of law, elevates, 
encourages, and protects our colored fellow- 
citizens.